A first bill to amend the statutory limitations period and supersede the Ledbetter decision was introduced in the 110th United States Congress but was never enacted, as after having been passed by the House it failed to survive a cloture vote in the Senate due to the opposition of most of the Republican Senators.

During the campaign for the 2008 elections, the Democrats criticized Republicans for defeating the 2007 version of the bill, citing Republican presidential candidate John McCain's opposition. Then-candidate Barack Obama supported the bill.[1]

A new version of the bill was eventually re-introduced in the first session of the 111th United States Congress, obtaining this time the necessary support to pass cloture. The bill was then brought to the attention of the President and became the first act of congress signed by the new President Obama since his assumption of office on January 20.

Contents

Court rulings

The antecedents of the case were posed when Lilly Ledbetter, a production supervisor at a Goodyear tire plant in Alabama, filed an equal-pay lawsuit regarding pay discrimination under Title VII of the Civil Rights Act of 1964, six months before her early retirement in 1998. The courts gave opposite verdicts, first supporting the complainant and later opposing; in conclusion the complainant brought the case to the attention of the Supreme Court. The latter ruled in 2007 by a 5-4 majority vote that Ledbetter's complaint was time-barred because the discriminatory decisions relating to pay had been made more than 180 days prior to the date she filed her charge, as explained by Justice Samuel Alito. The minority position explained by Justice Ruth Bader Ginsburg proposed an interpretation according to which the law runs from the date of any paycheck that contains an amount affected by a prior discriminatory pay decision.[2]

The case had never received much attention before going to the Supreme Court, but the Court's ruling ignited legal groups on the left and Democrats that took action to transform the Ledbetter case into a rallying issue for the left, having activists seen in the figure of the complainant an ideal standard-bearer in their attempt to persuade the public that the Supreme Court was moving too far to the right.[4]

Among the first to criticize the Court's decision was Marcia Greenberger, president of the National Women's Law Center, that saw in the ruling a "setback for women and a setback for civil rights" and called Ginsburg's opinion a "clarion call to the American people that this slim majority of the court is headed in the wrong direction." On the other side, the majority's findings were applauded by the US Chamber of Commerce, that called it a "fair decision" that "eliminates a potential wind-fall against employers by employees trying to dredge up stale pay claims."[5]

First bill

The House Democrats were fast to react, coming out on June 12 against the Court. Claiming lead from Justice Ruth Ginsburg's minority opinion, which invited the Congress to take action by amending the law, the Democrats announced their intention to intervene: House Majority LeaderSteny Hoyer and Education and Labor Committee Chairman George Miller said that a bill was to be passed to avoid future court rulings in line with Ledbetter, clearly putting that "a key provision of the legislation will make it clear that discrimination occurs not just when the decision to discriminate is made, but also when someone becomes subject to that discriminatory decision, and when they are affected by that discriminatory decision, including each time they are issued a discriminatory paycheck", as said by Rep. Miller.[6]

Republicans immediately opposed the bill as drafted, with Education and Labor Committee ranking memberHoward McKeon raising the issue that business executives would be held liable for actions taken by managers who weren't leading the company anymore: "At the end of the day, such a loophole conceivably could allow a retiring employee to seek damages against a company now led by executives who had nothing to do with the initial act of discrimination".[6]

The issue proved contentious also among lawyers: while the American Bar Association passed a resolution supporting the new bill, others such as Neal Mollen, argued that extending the term limit would put a strain on the chances of an adequate defense for the employers, as to defend themselves one "has to rely on documents and the memory of individuals, and neither of those is permanent. If a disappointed employee can wait for many years before raising a claim of discrimination ... he or she can wait out the employer, that is ensure that the employer effectively unable to offer any meaningful defense to the claim".[4][6]

Legislative history

President Obama signing the Act into law; to his right is the new law’s namesake, Lilly Ledbetter

The bill (H.R. 2831 and S. 1843) was defeated in April 2008 by Republicans in the Senate who cited the possibility of frivolous lawsuits in their opposition of the bill[7] and criticized Democrats for refusing to allow compromises.[8]

The bill was re-introduced in the 111th Congress (as H.R. 11 and S. 181) in January 2009. It passed in the House of Representatives with 247 votes in support and 171 against.[9] The vote was nearly perfectly split along party lines, with only three Republicans voting in favor (Ed Whitfield of Kentucky, Don Young of Alaska and Chris Smith of New Jersey) and two Democrats voting nay (Travis Childers of Mississippi and Parker Griffith of Alabama). The Senate voted 72 to 23 to invoke cloture on S. 181 on January 15, 2009.[10] (The vote to invoke cloture ends debate on a bill, and usually leads to a final vote within a few days.) The Lilly Ledbetter Fair Pay Act passed the Senate, 61-36, on January 22, 2009. The votes in favor included every Democratic senator (except Edward Kennedy of Massachusetts, who was absent from the vote because of health issues) and five Republican senators.[11]

President Obama has long championed this bill and Lilly Ledbetter's cause, and by signing it into law, he will ensure that women like Ms. Ledbetter and other victims of pay discrimination can effectively challenge unequal pay.[12]

House Majority Leader Steny Hoyer announced that the House would vote on S.181 (the bill passed by the Senate) during the week of January 26, getting the bill to President Obama's desk sooner rather than later. On January 27, the House passed S.181 by a 250-177 margin.

On January 29, Obama signed the bill into law. It was the first act he signed as president, and it fulfilled his campaign pledge to nullify Ledbetter v. Goodyear.[13] However, the fact that he signed it only two days after it was passed by the House brought him under criticism from papers such as the St. Petersburg Times which mentioned his campaign promise to give the public five days of notice to comment on legislation before he signed it. The White House through a spokesman answered that they would be "implementing this policy in full soon", and that currently they were "working through implementation procedures and some initial issues with the congressional calendar".[14]

To amend title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act of 1967, and to modify the
operation of the Americans with Disabilities Act of 1990 and the
Rehabilitation Act of 1973, to clarify that a discriminatory
compensation decision or other practice that is unlawful under such
Acts occurs each time compensation is paid pursuant to the
discriminatory compensation decision or other practice, and for
other purposes.

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

Section
1. Short Title.

This title may be cited as the ``Lilly Ledbetter Fair
Pay Act of 2009´´.

Sec.
2. Findings.

Congress finds the following:

(1) The Supreme
Court in Ledbetter v.
Goodyear Tire & Rubber Co., 550 U.S. 618 (2007),
significantly impairs statutory protections against discrimination
in compensation that Congress established and that have been
bedrock principles of American law for decades. The Ledbetter
decision undermines those statutory protections by unduly
restricting the time period in which victims of discrimination can
challenge and recover for discriminatory compensation decisions or
other practices, contrary to the intent of Congress.

(2) The limitation imposed by the Court on the filing of
discriminatory compensation claims ignores the reality of wage
discrimination and is at odds with the robust application of the
civil rights laws that Congress intended.

(3) With regard to any charge of discrimination under any law,
nothing in this Act is intended to preclude or limit an aggrieved
person's right to introduce evidence of an unlawful employment
practice that has occurred outside the time for filing a charge of
discrimination.

(4) Nothing in this Act is intended to change current law
treatment of when pension distributions are considered paid.

Sec.
3. Discrimination in Compensation Because of Race, Color,
Religion, Sex, or National Origin.

``(3)(A) For purposes of this section, an unlawful employment
practice occurs, with respect to discrimination in compensation in
violation of this title, when a discriminatory compensation
decision or other practice is adopted, when an individual becomes
subject to a discriminatory compensation decision or other
practice, or when an individual is affected by application of a
discriminatory compensation decision or other practice, including
each time wages, benefits, or other compensation is paid, resulting
in whole or in part from such a decision or other practice.

``(B) In addition to any relief authorized by section 1977A of
the Revised Statutes (42 U.S.C. 1981a), liability may accrue and an
aggrieved person may obtain relief as provided in subsection
(g)(1), including recovery of back pay for up to two years
preceding the filing of the charge, where the unlawful employment
practices that have occurred during the charge filing period are
similar or related to unlawful employment practices with regard to
discrimination in compensation that occurred outside the time for
filing a charge.´´.

Sec.
4. Discrimination in Compensation Because of
Age.

Section 7(d) of the Age Discrimination in Employment Act of
1967 (29 U.S.C. 626(d)) is amended—

(1) in the first sentence—

(A) by redesignating paragraphs (1) and (2) as subparagraphs
(A) and (B), respectively; and

(B) by striking ``(d)´´ and inserting ``(d)(1)´´;

(2) in the third sentence, by striking ``Upon´´ and inserting
the following:

``(2) Upon´´; and

(3) by adding at the end the following:

``(3) For purposes of this section, an unlawful practice
occurs, with respect to discrimination in compensation in violation
of this Act, when a discriminatory compensation decision or other
practice is adopted, when a person becomes subject to a
discriminatory compensation decision or other practice, or when a
person is affected by application of a discriminatory compensation
decision or other practice, including each time wages, benefits, or
other compensation is paid, resulting in whole or in part from such
a decision or other practice.´´.

Sec.
5. Application to Other Laws.

(a) Americans With
Disabilities Act of 1990.—

The amendments made by section 3 shall apply to claims of
discrimination in compensation brought under title I and section
503 of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12111 et seq., 12203),
pursuant to section 107(a) of such Act (42 U.S.C. 12117(a)), which
adopts the powers, remedies, and procedures set forth in section
706 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-5).

(b) Rehabilitation Act of
1973.—

The amendments made by section 3 shall apply to claims of
discrimination in compensation brought under sections 501 and 504
of the Rehabilitation Act of 1973
(29 U.S.C. 791, 794), pursuant to—

(1) sections 501(g) and 504(d) of such Act (29 U.S.C. 791(g),
794(d)), respectively, which adopt the standards applied under
title I of the Americans with
Disabilities Act of 1990 for determining whether a violation
has occurred in a complaint alleging employment discrimination;
and

(A) in paragraph (1), by inserting after ``(42 U.S.C. 2000e-5
(f) through (k))´´ the following: ``(and the application of section
706(e)(3) (42 U.S.C. 2000e-5(e)(3)) to claims of discrimination in
compensation)´´; and

(B) in paragraph (2), by inserting after ``1964´´ the
following: ``(42 U.S.C. 2000d et seq.) (and in subsection (e)(3) of
section 706 of such Act (42 U.S.C. 2000e-5), applied to claims of
discrimination in compensation)´´.

``(f) Section 706(e)(3) shall apply to complaints of
discrimination in compensation under this section.´´.

(3) Age Discrimination
in Employment Act of 1967.—

Section 15(f) of the Age Discrimination in Employment Act of
1967 (29 U.S.C. 633a(f)) is amended by striking ``of section´´ and
inserting ``of sections 7(d)(3) and´´.

Sec.
6. Effective Date.

This Act, and the amendments made by this Act, take effect as
if enacted on May 28, 2007 and apply to all claims of
discrimination in compensation under title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.), the Age Discrimination in Employment Act of
1967 (29 U.S.C. 621 et seq.), title I and section 503 of the Americans with
Disabilities Act of 1990, and sections 501 and 504 of the Rehabilitation Act of 1973,
that are pending on or after that date.